Justice not seen to be done

The events of the past few days seem to confirm that something, somewhere is indeed deeply wrong within Malta’s halls of justice. There is evidence that the ‘rule of law’ is not functioning properly.

The compilation of evidence against the three suspects accused of murdering Daphne Caruana Galizia has now had to be delayed twice: with no fewer than three magistrates being assigned to the case in less than a week. This happened because the first two magistrates both decided (for different reasons) to recuse themselves from hearing the case.

Magistrate Donatella Frendo Dimech revealed she had been in the same class as one of the victim’s sisters 34 years ago, and had extended social greetings (including condolences to the Caruana Galizia family) in the past. Her replacement, Charmaine Galea,  declared she had once represented clients who were suing Daphne Caruana Galizia, who had in turn blogged disparagingly about her appointment to the judiciary.

Neither pretext is sufficient to warrant recusal. As the prosecution duly noted in court, there are regulations governing the issue of conflicts of interest that may arise concerning a judge or a magistrate. In the case of past familial connections with the deceased’s relatives... given Malta’s size and circumstances, that could apply to a wide variety of different cases, making it difficult for almost any magistrate to hear any case. It is at best a tenuous ‘conflict’. 

Separately, all members of the judiciary (under the system before it was recently changed) were once lawyers representing clients in court – or performing all sorts of other legal services - making similar ‘conflicts of interest’ inevitable. It is understood that such considerations must be left at the door when one accepts to become a judge or magistrate. Otherwise, all members of the judiciary would – by definition - be equally susceptible to the same doubts or misgivings.

But it is too easy to criticise the reasons for these recusals, without considering the legal infrastructure that makes them possible in the first place. Ultimately, our legal system allows for a degree of discretion in such cases. It is not the first time lawyers have demanded the recusal of judges or magistrates on similarly flimsy pretexts. We must recognise this as an inherent flaw in the judicial system... one to be rectified when (or if) we ever come to a national discussion on Constitutional reform.

This, too, is a component of the rule of law. The cornerstone of that principle is the presumed ‘equality’ of the justice meted out in any country. In a country which observes the rule of law, any of its citizens – from the lowliest to the most powerful and most influential – should expect exactly the same treatment from the legal system as everybody else. The pattern that seems to be emerging from recent events, however, is that the legal system does not work the same for everyone. Judges and magistrates are manifestly more (or less) reluctant to take on certain cases than others.

Another incidence of the same pattern – also peculiar to this case – is the apparent reluctance of criminal lawyers to take on certain cases as well. The difference here is that there do not seem to be any rules and regulations that apply to a lawyer’s decision to represent, or not represent a client. Whether there should be such regulation, is perhaps a separate discussion.

These developments have added to the existing aura of controversy surrounding this particular case; and in different ways, we witnessed similar cases where perceptions were distorted because (among other reasons) of the possible political ramifications. The attempted assassination of Richard Cachia Caruana in 1994 was another case where undue political pressure (arguably both ways) got in the way of the normal judicial process.

Meanwhile, the current situation calls to mind the distant ‘Church Schools’ case in the 1980s, where judges were also changed repeatedly in a bid to delay the process (albeit for different reasons, and under different circumstances).

The resulting impression is that the quality of the justice served by our law courts is influenced in no small measure by the political sensitivity of any given case. Admittedly, it is just an impression... but as one of the recused magistrates herself pointed out, “Even appearances might be of certain importance. Justice must not only be done but must be seen to be done.”

This is precisely the problem here: justice is not being ‘seen to be done’. On the contrary, the country can see with its own eyes, how justice seems to be taking a different course from the ordinary in this case. This does not help the cause of ‘rule of law’ at all.

On another level, we have also seen similar situations develop in other branches and areas of the broader justice system. If a discussion on ‘the rule of law’ began at all, it was precisely because the proper authorities had failed to take action against the government over the Panama revelations. 

Whether justified or not, calls for the resignation of the AG and Police Commissioner were rooted in the same perception: the perception of a justice system that somehow fails when it is needed most.